Category: CRC12 / CRC13

A recent discussion in the Seanad suggests that a copyright reform Bill will be brought to government very soon. The discussion focussed on the need for efficient enforcement of IP rights in Irish courts, but it was placed in the broader context of copyright reform in general, and the Minister for Jobs, Enterprise and Innovation promised to bring a full package of copyright reform proposals to Government “before the summer recess”. That is due at the end of this week, which means that the copyright reform Bill would have to have been considered by the Government at today’s meeting. But there is nothing on the websites of the Department of the Taoiseach or the Department of Jobs, Enterprise and Innovation to suggest that it was discussed or approved today. Nevertheless, the discussion in the Seanad is suggestive that we will see the government’s reform proposals very soon. Copyright reform is yet another step closer. I greatly look forward to its arrival.

The discussion arose from the following question posed by Senator Ivana Bacik on the Commencement of the Seanad on Wednesday, 29 June 2016:

The need for the Minister for Jobs, Enterprise and Innovation to inform the House when she proposes to implement the recommendation of the Copyright Review Committee in its report Modernising Copyright, published in October 2013, concerning the extension of the small claims procedure in the District Court to include intellectual property claims up to the value of €15,000, as provided for within the draft Statutory Instrument prepared by the Committee.

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Last week, under the title Copyright reform comes a little closer in Ireland, I wrote about the copyright priorities of the Department of Jobs, Enterprise and Innovation, as set out in the Brief (pdf) to that department’s incoming Minister. This post is by way of a short update. The Government’s newly-published Legislation Programme (pdf) sets out the legislation that the Government will seek to publish over the next few months. There are eleven priority Bills for publication this session; there are four Bills expected to undergo pre-legislative scrutiny this session; and there are 17 Bills currently on the Dáil and Seanad Order Papers. This will keep the government and both Houses of the Oireachtas busy in the short term.

Of more long term interest are the 97 other Bills at various stages of preparation mentioned in the Programme. One of them is a proposed Copyright and Related Rights (and Miscellaneous Intellectual Property Matters) (Amendment) Bill (see p15). The aim of the Bill is to implement certain recommendations of the Copyright Review Committee to modernise Irish copyright law, with some other ancillary necessary legislative changes to copyright. And Heads of the Bill are “expected in June 2016”. We’ll see whether the Heads are published before the end of the month. But, whether or not they are, this listing means that we are one step closer to copyright reform in Ireland.

Further to my post on the Brief (pdf) to the incoming Minister for Education, I note this morning that a similar Brief (pdf) to the incoming Minister for Jobs, Enterprise and Innovation has been published on that Department’s website. Under the heading “immediate priorities in the months ahead” (section 1.3, p5) I was delighted to see the following priority:

(p) A Bill to provide for amendments in the Copyright area

It is proposed to submit for Government approval before summer 2016, a Memorandum for Government with draft Heads of a Bill seeking approval to draft a Bill aimed at achieving certain reforms and modernisation of certain aspects of copyright. [p8]

Similarly, under the heading “key priorities for the Innovation and Investment Division” (section 2.2, p22), I was delighted to see the following priority (emphasis added):

(b) Intellectual Property
(i) Implement a new certification scheme for Intellectual Property to enable small companies to qualify for the Knowledge Development Box (KDB) alongside legislation to underpin this initiative and, separately progress necessary legislative changes to patents legislation;
(ii) Continue preparatory work in the lead up to a referendum on ratification by Ireland of an international Agreement setting up a Unified Patent Court to adjudicate on patent litigation;
(iii) Progress amendments to copyright legislation in response to recommendations in the Report of the Copyright Review Committee.
(iv) Examine and negotiate proposals in the Intellectual Property area emerging from the European Commission in the context of the Digital Single Market and, the Single Market Strategy;
(v) Examination of legislative commitments in the Intellectual Property area to facilitate Ireland’s bid for upcoming major sporting events. [p23]

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Modernising Copyright, the Report of the Copyright Review Committee [CRC], was published in October 2013. It contained an extensive draft Copyright and Related Rights (Innovation) (Amendment) Bill 2013 to implement its recommendations. Senator Seán Barrett has now introduced a Private Member’s Bill into the Seanad to enact that draft Bill. Entitled the Copyright and Related Rights (Innovation) (Amendment) Bill 2015, leave to introduce it was granted on Wednesday, 2 December 2015; and the Bill itself was published this morning.

The text is the same as that of the CRC’s draft Bill, except in four respects. (more…)

In advance of tomorrow’s event on the future of copyright, I thought I’d write a few words about where we are now with copyright reform in Ireland and the EU. The twin legislative bases for Irish copyright law date from the turn of the millennium: the Copyright and Related Rights Act, 2000 (also here) and the EU Copyright Directive (Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society; the InfoSoc Directive). In Modernising Copyright, in October 2013, the Copyright Review Committee recommended various changes to the 2000 Act to adapt it better for the digital age. The EU Commission is moving towards making recommendations with a similar aim.

In January 2012, the EU Commission began a consultation process on reform of the InfoSoc Directive (SEC(2011) 1640 final) (11 January 2012). In parallel, it considered copyright licensing, intermediary responsibilities (notice and action) and private copying levies (pdf). Although the probable conclusions of the consultation process were leaked in 2014, they were never formally published. Among their number seems to have been a recommendation that the exceptions to and limitations on copyright provided by the InfoSoc Directive should be harmonized at a European level, so that every state should provide for the same exhaustive exceptions and limitations. I had mixed feelings about this. On the one hand, this would have been good for copyright users, who could make greater use of copyright works. On the other hand, it would have prevented competition between members states to attract inward investment from information technology companies on the basis of a more attractive copyright policy than that available in competing member states; (this was the basis on which, in Modernising Copyright, the CRC recommended that all of the InfoSoc exceptions and limitations be incorporated into Irish law). Moreover, I was dismayed that the list of exceptions and limitations would be exhaustive and closed, without the possibility of a safety value to take account of technological developments.

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THE FUTURE OF COPYRIGHT

Tuesday, 24 November 2015 – 18:00 to 19:30

FREE – PLEASE REGISTER

Paccar Theatre, Science Gallery, Trinity College Dublin.

Digitisation of creative works and exponential growth of web-based communications have made the enjoyment of music, films, books, TV and much more, almost ubiquitous. Alongside this, fast internet and the increasingly wide use of smartphones and portable devices has enabled users to exchange and easily share these files. Yet, the body of law that has traditionally aimed to ensure an economic incentive and reward to content creators and producers – broadly defined – has suffered for more than fifteen years from an identity crisis.

Join me in conversation with my Trinity colleague Giuseppe Mazziotti in a discussion around the commercial, technological, cultural and societal implications of the current review of the copyright framework undertaken in the context of the EU Digital Agenda, where European policy makers are seeking to ensure a more effective, uniform and acceptable definition of copyright’s scope and of its online enforcement techniques [see COM(2015) 192 final (pdf)].

The occasion for this talk is the publication by the European Parliament of a Review of the EU copyright framework [available here; pdf] which was co-authored by Giuseppe Mazziotti. The Parliament has already adopted a Report recommending copyright reform; and a legislative proposal is due very soon from the Commission. Moreover, in an Irish context, there will be an assessment of the current state of play relating to Modernising Copyright, the 2013 Report of the Copyright Review Committee (pdf here).

Admission to the event is free, but registration is advised.

This is the fourth and final post in a series on Senator Seán Barrett‘s Private Members’ Bill, the Universities (Development and Innovation) (Amendment) Bill 2015, which was discussed last week in the Seanad (earlier posts are here, here and here). Section 7 of the Bill relates to some staff issues. In particular, section 7(1)-(2) would have solved some of the problems associated with the interpretation of section 25(8)(b) of the Universities Act, 1997 (also here) in the Supreme Court in Fanning v UCC [2005] IEHC 264 (24 June 2005), aff’d [2008] IESC 59 (28 October 2008).

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Today in the Department of Jobs, Enterprise and Innovation, Minister Bruton and Minister Sherlock launched Modernising Copyright, the Report of the Copyright Review Committee (pdfs: via this site; via the DJEI site [link updated 18 November 2015]) (see barnold law | Business & Leadership | Damien Mulley| DJEI Press Release here and here | Irish Times | infojustice.org | Irish Independent | Technology.ie | The 1709 Blog | TheJournal.ie).

Copyright reform is in the air, in Australia, Canada, Germany, India (pdf), the EU (here, here, here (pdf), and here), the UK, and the US (here (pdf) and here). As part of this process, the Copyright Review Committee (the Committee) was established on 9 May 2011 by the Minister for Jobs, Enterprise and Innovation, Mr Richard Bruton (TD). It consisted of Dr Eoin O’Dell (Trinity College Dublin), Patricia McGovern (DFMG Solicitors, Dublin), and Professor Steve Hedley (University College Cork), and it was tasked with proposing solutions for areas of current copyright law that create barriers to innovation.

The Committee established a website for the process, held a public meeting on 4 July 2011, received over 100 written submissions, and published a Consultation Paper on 29 February 2012. The Committee held a further public meeting on 24 March 2012, received in the region of 180 further submissions (including via an online questionnaire) and has now published the Report, which includes a detailed draft Copyright and Related Rights (Innovation) (Amendment) Bill 2013.

Summary
The centerpiece recommendations relate to the establishment of a Copyright Council of Ireland and specialist intellectual property tracks in the District and Circuit Courts, and to the introduction of tightly-drawn exceptions for innovation, fair use, and very small snippets of text in the context of online links.

The position of rightsowners will be improved, by recommendations to extend remedies, technological protection measures, and rights management information. Furthermore, photographers in particular will benefit from the recommendation that copyright protection for metadata be strengthened.

The position of copyright users will also be improved, by recommendations to introduce the full range of exceptions permitted by EU law, including format- shifting, parody, education, disability, and heritage, as well as related exceptions for non-commercial user-generated content and content mining. Furthermore, copyright deposit libraries, in particular, will benefit from the recommendation that the existing legal copyright deposit provisions be extended to digital publications. Finally, all users will benefit from a comprehensive recommendation that any contract term which unfairly purports to restrict an exception permitted by the Act should be void.

The main recommendations in the Report and the draft Bill
A central recommendation of the Report is the formation of a Copyright Council of Ireland, as an independent self-funding organisation, created by the Irish copyright community, recognised by the Minister, and supported and underpinned by clear legislative structures provided (section 3 of Bill; and the Schedule). It should be able to establish a Digital Copyright Exchange (to expand and simplify the collective administration of copyrights and licences), a voluntary alternative dispute resolution service (to meet the need for an expeditious dispute resolution service outside the court system), and an Irish Orphan Works Licensing Agency (to provide a solution to the problem of orphan works).

In parallel, the Report recommends that the Small Claims procedure in the District Court be extended to include intellectual property claims up to the value of the standard limit of the District Court’s jurisdiction, and that a specialist intellectual property court also be established in the Circuit Court (section 4 of the Bill).

The Report recommends the introduction of tightly-drafted and balanced exceptions for innovation and fair use. Given the significant nature of these changes, the Report specifically recommends that the Minister’s power to determine the date on which they come into operation should be expressly reiterated in these sections, so that they may come into effect on a graduated basis at appropriate times.
As to the recommended innovation exception, the Report recommends that it should not be an infringement of copyright to derive an original work which either substantially differs from, or substantially transforms, the initial work (section 21 of the Bill). As to the recommended fair use exception, it is very circumspect, and differs substantially from the US doctrine. The Report recommends the existing exceptions be regarded as examples of fair use, that they must be exhausted before analysis reaches the question of fair use, and that the question of whether a use is fair on any given set of facts turns on the application of up to eight separate factors (section 29 of the Bill).

The Report recommends that linking should not infringe copyright, except where the provider of the link knew or ought to have been aware that it connects with an infringing copy. The Report further recommends that it should not be an infringement of copyright to reproduce a very small snippet of the linked work reasonably adjacent to the link, and that a very small snippet should consist of no more than either 160 characters or 2.5% of the work, subject to a cap of 40 words (section 14 of the Bill).

The Report recommends explicit protection for digital watermarks and other metadata applied to photographs: a definition of metadata is provided (section 2(2) of the Bill), and the Report recommends not only that copyright protection be extended to metadata, but also that its removal should amount to an infringement of copyright (section 9 of the Bill).

The Report recommends amending the definition of fair dealing to allow Irish law to reconnect with developments on fair dealing elsewhere in the common law world (section 16 of the Bill). It also recommends the introduction of the full range of exceptions permitted by EU law. Five of these relate to private use: reproductions on paper for private use; format-shifting; back-ups; parody; and non-commercial user-generated content (all in section 16 of the Bill). Other recommended exceptions relate to news (section 15 of the Bill), religious or official celebrations (section 16(3)(b) of the Bill), public administration (section 20 of the Bill), education (section 17 of the Bill), disability (section 18 of the Bill), heritage institutions (section 22 of the Bill), copyright deposit libraries (section 25 of the Bill), content-mining (section 27 of the Bill), and digital research and computer security (section 28 of the Bill). Moreover, users and consumers should benefit from a comprehensive recommendation that any contract term which unfairly purports to restrict an exception permitted by the Act should be void (section 19 of the Bill).

Finally, the Report recommends that there should be a review of the operation of the changes made by the Bill five years or so after it comes into force (section 30 of the Bill).

Conclusion
The Advanced Research Projects Agency Network (ARPANET) was one of the world’s first packet-switching networks; it was the first network to implement TCP/IP; and packet-switching and TCP/IP are at the heart of the modern internet. On this day in 1969, at 10:30 pm, the first-ever computer-to-computer link was established on ARPANET; and the image, left, is an excerpt from a log describing that transmission. The internet has come a long way since this first ARPANET message was sent, and it is one of the developments which have made necessary the modernisation of copyright considered in the Report. No doubt the Department of Jobs, Enterprise and Innovation will have to consult with various government departments, public bodies, and other stakeholders; and there will be further public meeting on 9 December next in the Royal Irish Academy (RIA). In advance of that meeting, I will, in my forthcoming posts, look in some detail at the Report and its Bill.